Public Bill Committee

[Mr. Frank Cook in the Chair]

Frank Cook: I remind the Committee that there is a money resolution in connection with the Bill, copies of which are available in the room. I also remind hon. Members that, as a general rule, adequate notice should be given of amendments. I and my fellow Chairman do not intend to call starred amendments. The Committee will have received a lot of textual submissions. I have done my best to approve them quickly so that hon. Members receive them as early as possible. I hope that they are of assistance. Membersof the Committee may remove their upper, outer garments, if they so wish—nothing more than that.

Rosie Winterton: I beg to move,
That—
(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 24th April)
meet—
(a) at 4.30 p.m. on Tuesday 24th April;
(b) at 9.25 a.m. and 1.30 p.m. on Thursday 26th April;
(c) at 10.30 a.m. and 4.30 p.m. on Tuesday 1st May;
(d) at 10.30 a.m. and 4.30 p.m. on Tuesday 8th May;
(e) at 9.25 a.m. and 1.30 p.m. on Thursday 10th May;
(f) at 10.30 a.m. and 4.30 p.m. on Tuesday 15th May;
(2) the proceedings shall be taken in the following order: Clause 1; Schedule 1; Clauses 2 to 23;
Schedule 2; Clauses 24 to 32; Schedules 3 and 4; Clauses 33to 38; Schedule 5; Clauses 39 to 47;
Schedules 6 to 8; Clauses 48 to 50; Schedule 9; Clauses 51 and 52; Schedule 10; Clauses 53 to 55; new Clauses; new Schedules; remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.30 p.m. on Tuesday 15th May.
I am sure that I speak on behalf of all members of the Committee when I say how pleased we are to be sitting under your expert chairmanship, Mr. Cook, and that of Lady Winterton. We are very much looking forward to the debate.
The Bill certainly raises some extremely sensitive issues. I wish first to emphasise the Government’s objectives, which are to make sure that people with serious mental health problems receive the treatment that they need; to modernise mental health law in line with the development of services; to tackle current European convention on human rights incompatibilities and to strengthen patients’ rights.
The modernisation of mental health legislation has been under discussion for something like nine years. I thank all the parliamentarians who participated in those discussions, particularly members of the pre-legislative scrutiny Committee. I wish also to thank all the interested organisations that have contributed to the debate and officials at the Department of Health and the Home Office who have spent much of their waking hours putting together this and previous, draft Bills. We have a fine body of men and women here today. I am sure that the debate will be lively, but I hope also constructive.
As right hon. and hon. Members know, the Government wish to make changes to the Bill that has come from the other place, but I emphasise that that is because we consider it vital that treatment and help are given to some of the most vulnerable people in our society—the subject of the Bill. It is important to point out that we need to see the Bill in the context of the improvements that we have been making to mental health services during the past 10 years, particularly through the national service framework. Many of the changes that we are proposing under the mental health legislation are because of the many new services that we can now offer to people with mental health problems.
I pay tribute to the hard work and dedication of the many thousands of staff in our mental health services who have done so much to improve what we can offer to make sure that we have high-quality services that are accessible to people who need them. I shall conclude my remarks by again thanking all those who have helped to draw up the legislation and I look forward to the forthcoming debates.

Tim Loughton: May I reiterate the comments of the Minister in welcoming you, Mr. Cook, and Lady Winterton to the chairmanship of the Committee? As you are aware, Mr. Cook, this is a fairly contentious piece of legislation and we are likely to have a full and frank exchange of views during the debate, which I am sure you are more than familiar with.
May I also reiterate the Minister’s comments about welcoming the fine body of men and women on both sides of the Committee? A great deal of expertise has gone into the Committee, which I am sure will come to the fore. It gives those of us—certainly the Minister, myself and others—who have been working with the Bill for many years something of a strange sense to be here. The Bill has been some eight years in the making. We have had two draft Bills and an excellent pre-legislative scrutiny Committee, which I had the privilege to serve on under Lord Carlile. Now, at last, we have the Bill in front of us in black and white as it continues its progress.
The strong interest that we saw in the Bill on Second Reading is symptomatic of the many people who have an interest in getting the legislation right. On that basis, I am pleased that the Government have given us six sittings in the programme motion. I hope, Mr. Cook, that given the strong issues of principle involved, particularly in those six areas of the Bill that were substantially amended in the House of Lords, you will allow some fairly substantial debates, because those issues remain contentious. The issues are also fundamental to the acceptability of the Bill, not just to Members on either side of the argument here, but to a great many people outside this place.
Given that no fewer than 80 organisations representing mental health professionals, service users and service providers, particularly in the voluntary sector, have formed the extraordinarily close Mental Health Alliance, which has been going for some years and has gone from strength to strength, we will want to probe in Committee to find out why the Government seem to be standing in “splendid isolation”—as my hon. Friend the Member for Buckingham (John Bercow) described it on Second Reading—and why they appear resolute in overturning the scrutiny and the excellent amendments that improved the Bill during its passage through the House of Lords.
Only today, the British Medical Association issued a press release that stated:
“the mental health Bill will not help vulnerable patients, say doctors.”
We want the Minister to justify why she, her Department and her Government think that the BMA, the Royal College of Psychiatrists, the Law Society, Rethink, Mind, the Sainsbury Centre for MentalHealth, the Royal College of Nursing and assorted other highly reputable organisations, which are often quoted by the Government, are wrong to oppose the way in which the Government are trying to overturn the Lords amendments to the Bill.
We want to have a full debate on six issues: treatability, exemptions from mental disorder, the renewal of detention, age-appropriate treatment, impaired decision making and, perhaps most contentious of all and an area on which we want to spend as much time as possible, community treatment orders. I envisage that we will have some voting action in the process of the Committee as well.
May I put in a plea, Mr. Cook, for the Committee to have every opportunity to scrutinise all the available evidence in the six sittings? You will be aware that the Government controversially published their report on the international experiences of community treatment orders, which the Minister’s own Department had commissioned from the Institute of Psychiatry last year. According to the institute, that report was available in a format that could have been published,at least in interim form, many months before it was,on 7 March. The Government, however, decided to publish that report the day after the House of Lords had finished its proceedings. Yet community treatment orders were a very important part of that debate. My plea is that, now we have had an opportunity to lookat that report, which offers no empirical evidence to justify community treatment orders being introduced, any further evidence that the Government may have commissioned or may be considering that is germane to the Committee’s proceedings should be made available to it at the earliest possible date.
I am particularly alarmed by comments by Labour Members on the recent tragic shootings at Virginia Tech. One right hon. Member who spoke on Second Reading drew a close parallel between what happened in Virginia and what could happen here, subject to our deliberations on the Mental Health Bill. I fundamentally disagree with those implications, which are based on no evidence whatsoever. I know that the Minister’s Department has been in close contact with mental health experts from the university of Virginia school of law and that the Minister’s mental health tsar has invited an eminent professor to meet a group of Members of Parliament on 5 June, but I have not been made aware of anysuch meeting. What happened in Virginia may have implications for our deliberations on the Bill, but if the Government think it relevant to invite an expert, the Committee should be aware of what might come out of that meeting. We need to have that information sooner rather than later.
On a general point, I hope that other evidence that will be useful in our deliberations will not come out when it is too late. We all want a Mental Health Bill that will work. The primary purpose of the Mental Health Bill must be to improve services and safeguards for patients, reduce the stigma of mental disorder and ensure that the public are protected. That was the view of the pre-legislative scrutiny Committee, on which I served, and its report was widely acclaimed by many people. I hope that we can have a full and frank debate on all the evidence available, on the basis that all hon. Members—whatever side of the argument they stand on in relation to the technicalities of certain parts of the Bill—want to achieve a better situation for some of the most vulnerable people in society.
We must also be aware that mental health legislation can contribute to stigma. People suffering from mental illness are some of the greatest victims of stigma in our society, so we must ensure that our deliberations are fully conscious of that and that our final resolutions lead to something that can, at last, help to reduce the stigma from which so many people with mental illness suffer. I hope, therefore, that we can do a great dealof good in producing a piece of legislation fit for the 21st century and that it helps those people that Committee members want to help.

John Pugh: May I welcome you to the Chair, Mr. Cook? When we were last in a debate together you used a rather vivid canine metaphor to describe Liberal Democrats, from which I hope that you will temporarily exempt me and my hon. Friend the Member for Romsey.
I, too, was overawed when I saw the list of Committee members. Never have I seen such a thoughtful, experienced group of individuals assembled for a Bill as controversial as this. It is fair to say that we do not have a Committee of yes-men, or yes-people. I take that as a relatively hopeful sign, because if people take fixed, immovable positions, stake out the ground, raise their flags, and rehearse and repeat the same arguments, there is a serious danger of our easily entering into a dialogue of the deaf.
The Lords debate, as we have seen already, was not like that; it was thorough, eloquent and well-informed. Copious amounts of research material and submissions have been made available and I assume that every Committee member has read those thoroughly to the last letter. We do not need to rival or equal that debate. Our job should be much more modest; we should see whether we can bridge the gap between the Government and, not the Opposition, but a large section of the mental health community—the professionals, the carers and the sufferers. The Opposition, to some extent, stand proxy for those people and many of the amendments tabled by the Opposition are formulated by them. We must tease out and clarify the differences that currently exist and see, where possible, how those can be bridged.
It would help if, in the initial stages, we could park our views about the Government’s intentions and adopt as little forensic language as we need to. At this stage, we need not air views about what rogue psychiatrists may or may not do with particular proposals. We must concentrate simply on what the proposals say and do, because the legislation that we will produce is, ultimately, likely to affect millions over decades. We owe it to them to progress matters as rationally as possible. The issue is about not simply liberties—although liberty has been talked about a great deal—but some of the most intense suffering known to man. It genuinely ought not to be decided simply by political force majeure, or by the lottery of the wash-up or the ping-pong. In that spirit, we would like to begin examining the Bill.

Question put and agreed to.

Motion made, and Question proposed,
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.—[Ms. Winterton.]

Tim Loughton: This is the first Committee that I have been involved in under the new public Bill procedures, so some brief comments might be useful so that we all know where we are coming from.

Frank Cook: Me too.

Tim Loughton: We are all on a fast learning curve here, Mr. Cook, and I wrote to the Minister before Easter to get some elaboration on how she thought this process might work. My concern, not least in light of my previous reference to the publication of the report on community treatment orders after the House of Lords had finished its deliberations, was that further scrutiny of new evidence would be beneficial to the Committee. I therefore asked the Minister whether the full rigours of the Public Bill Committee could be brought to bear, so that we could have an oral witness session, particularly on community treatment orders, to examine that important evidence, which could then feed through to the Committee’s deliberations, as well as the normal written submissions that have been mentioned. The Minister suggested that further oral witness sessions were not necessary, in her view, and that the procedure would be to invite written submissions that would be then be made available to the Committee. I also thank you, Mr. Cook, forthe speed with which you have made those initial38 submissions—

Frank Cook: Forty-six.

Tim Loughton: Yes, it is now up to 46. For those of us who took them away, those initial 38 ruined our weekends but enabled us to have some time to look at them properly before the Committee started. Very interesting submissions they are too, and I am gladthat that invitation was taken up seriously by the organisations and individuals who have responded.
I understand that written submissions can continue to be made and will therefore be made available to the Committee, subject to your discretion, Mr. Cook, until the final day of its proceedings, and that those written submissions approved by you will also be published as part of the written Hansardrecord of this Committee. May I take your nod as to whether I am getting it right so far?

Frank Cook: I think that I had better provide some clarification. Some submissions have been presented with the proviso that they will not be published on the internet. That being the case, the submissions will not be preserved there but in the archives.

Tim Loughton: Thank you for that clarification, Mr. Cook. I am sure that the Committee will be more than happy to rely on your discretion as to what finally gets published; as we have seen, what has been made available so far certainly seems to be fairly extensive.
My point here is that the Minister suggested that we did not need to have further scrutiny of this Bill, and while those of us involved with it over several years might be inclined to agree, new things have come out. The Bill that we are scrutinising is now fundamentally different from that which started its scrutiny process in December in the House of Lords. On that basis, we thought that further scrutiny would be beneficial to the Committee, and as I have mentioned to you, Mr. Cook, several members of the Committee decided to set up a witness session yesterday afternoon in Committee Room 16. There, for a marathon three and a half hours, 11 members of the House of Lords and the House of Commons, from the Conservative, Lib Dem and Welsh nationalist parties, and Cross Benchers—unfortunately no Labour Members were available to attend—scrutinised no fewer than 25 witnesses from an enormous range of organisations and individuals. The vast majority of them are familiar with the Bill, whether in submitting evidence, appearing as witnesses before the pre-legislative scrutiny Committee or making other representations all along. For three and a half hours we took some fairly extensive evidence, most pointedly on the community treatment orders, to which we devoted most of our time yesterday afternoon. We were able to have the proceedings recorded, and they will shortly be transcribed by a Hansard reporter in a written format, which we would then wish to publish and make available to all Members of Parliament,of both Houses, and certainly to members of the Committee, as soon as it has physically been transcribed.

Chris Bryant: The hon. Gentleman said that the session was recorded by Hansard, which would suggest that it was an official Committee of the House. Is that what he means?

Tim Loughton: No, that is not what I said. I said that the proceedings were recorded by House officers, but the transcription will be done by a Hansard reporter on a free-lance basis, for which a fee will be paid. So, the session was not, nor was it ever assumed to be, an official Committee of the House. At no point wasit claimed to be an all-party group or an official Committee.
To clarify, a joint letter was sent by the hon. Member for Romsey and myself, initially to every member of the pre-legislative scrutiny committee, whose names—from both Houses—we obviously knew, which referred to an impromptu committee being set up that we hoped would have the involvement of all parties. At no point did we claim that it would be some sort of official committee. It was made quite clear that because we felt that further witness sessions were desirable—it is better to inform the Committee, and I do not see what the downside could possibly be—we wanted to set up a committee involving as many interested parties as possible, from all parties as well, to take expert witness testimonies.

James Duddridge: It is a pleasure to serve under your chairmanship again, Mr. Cook. We are all finding our way on the Public Bill Committee and I understand one of the reasons that we could not have an evidence session right at the beginning of proceedings was that the Bill started out in another place. However, does my hon. Friend agree that it would be an idea to have such evidence sessions when the Bill starts in the other place? I certainly found yesterday’s evidence session rewarding and useful, and would have found it much more so had we been able to do it formally, on a cross-party basis, so it was much more similar to a Select Committee?

Tim Loughton: I am grateful to my hon. Friend, because he was one of the attendees at the session yesterday. He has come to the legislation relatively late. Clearly, the deliberations and evidence taken yesterday have better informed his ability to scrutinise the legislation in Committee. That was the whole point, and it was unfortunate that the committee could notbe conducted on an official basis. However, at the end of the day, the result is to achieve a written record of25 witnesses, including some who agreed with the changes proposed in the amendments, and some previously pleaded in aid by the Government and some not.

Chris Bryant: I am grateful to the hon. Gentleman. I do not want to sour the beginning of the debate, because I hope that we can reach a Bill that commands the respect and support of as many Members of the House as possible. However, I think that he has inadvertently misled the Committee, because his e-mail to the Minister, which was widely circulated by his office to others, said quite specifically the opposite of what he just told us, namely, that the Minister was invited to speak at a special all-party committee.

Tim Loughton: I have not misled the Committee in any way. I will hoy out the letter. On Second Reading, I said that we were setting up the committee and would invite the Minister to attend. At no point was it challenged as claiming to be anything other than what the letter—a copy of which was also sent to the hon. Gentleman—referred to, which was an impromptu committee. On Thursday, the Whip in charge of the Bill gave me a list of all the Labour members of the Bill Committee. Afterwards, I think at 11.22 am, the letter went out as an e-mail, inviting the hon. Member for Rhondda and other members of the Committee to the impromptu committee. Curiously, at business questions, which started some eight minutes later, I gather that the hon. Gentleman mentioned that he had received the letter and referred to me by name. When the hon. Gentleman was challenged by the Speaker about whether he had mentioned to me that I would be named, he said that he had been trying to get hold of my office all morning.

Rosie Winterton: Will the hon. Gentleman give way?

Tim Loughton: I will in a minute.
That was rather strange, given that the letter arrived by e-mail only some eight minutes before business questions and my office had no record of receiving any calls from the hon. Gentleman, having been manned since 7.30 that morning.

Ian Gibson: Will the hon. Gentleman give way?

Tim Loughton: I will give way to all hon. Members in a tick. I do not understand why there seems to be a fuss about a committee that was set up informally on an impromptu basis for the purpose of better informing everyone involved with the Mental Health Bill about our proceedings. I think that the Minister wanted to intervene first. I shall then give way to the hon. Member for Norwich, North.

Frank Cook: Order. I am anxious to ensure that our deliberations take place with an attitude of tolerance and free exchange. At the moment, we are discussing a motion on written evidence that may be submitted before the last sitting of the Committee. I do not want to become bogged down at this stage in the finer detail of how and why the event under discussion has happened. The hon. Member for East Worthing and Shoreham has given what seemed a fairly clear explanation of how, why and who was involved in the matter, and related it to a statement made on Second Reading. I do not want to spend undue time going through the detail now. If such questions are essential, I shall go along with them for the moment, but we are absorbing an undue amount of time in what is a tight programme; 12 sittings have been allocated, and we shall have a lot to accommodate.

Rosie Winterton: Bearing in mind absolutely what you have just said, Mr. Cook, I wanted to intervene on the hon. Member for East Worthing and Shoreham to say that written evidence is extremely important, but that I was a little concerned about the impressions given to organisations because of his letter inviting me to
“be the first witness at the special all-party committee we have convened”.
I did not want organisations to feel that I had not gone to a formal Committee of the House, which was the impression that had been given.

Frank Cook: That is a fair point.

Tim Loughton: I shall give way to the hon. Member for Norwich, North.

Ian Gibson: My concern is not about whether we hear the best evidence and all the evidence that is available, but that we must contain that evidence within a room such as this where we can discuss it openly with each other. To set up another committee or all-party mental health group seems to undermine the work of this Committee. I feel that deeply. If we want to play at silliness, we can start taking trips around every mental health hospital in this country, Russia and the rest of the world. We do not want to get into that. If we can get evidence from other places, fine. We do not need to set up other committees that seem to undermine the work of this Committee. Bring the evidence to us; we shall look at it and argue about it. If we, as a Committee, think that we need to have someone to inform us about matters because we do not understand issues or argue about them, I accept that. What the hon. Gentleman has been talking about smacks of undermining the work of this Committee.

Frank Cook: Mr. Loughton, you have made your point clearly. Can we move on with the motion?

Tim Loughton: May I give way to my hon. Friend the Member for Tiverton and Honiton?

Angela Browning: As a member of the scrutiny Committee, I should like to mention one of the useful things about yesterday’s meeting. The scrutiny Committee made a great many recommendations to Government in response to the draft Bill, Just about every salient recommendation was rejected by the Government, but they have now been reinstated in the Bill in another place. Revisitingthe evidence base in the light of those changed circumstances was therefore extremely constructiveand helpful.

Doug Naysmith: It is a great pleasure to serve under your chairmanship once more, Mr. Cook. I understand that you want to move on, but I would grateful if you would let me say a word or two, because of the reference to the scrutiny Committee. I think that I am the only Government Committee member who was also a member of the scrutiny Committee. I received two invitations to the meeting yesterday: as a former member of the scrutiny Committee and as a member of this Committee.
It is disingenuous, to say the least, to suggest that Committee members missed a huge amount by not attending the meeting yesterday. Setting up the meeting struck me almost as a political game to try to trip up Labour Committee members. I understand, Mr. Cook, that you do not want remarks like that to be made. I shall try to restrain myself. However, I have never, ever—I am not allowed to mention people in the audience, so I apologise—had more information supplied for a Bill than we have been supplied with over the past few months by the organisations that have been sending it in, since before Second Reading. The pile of papers is so high. I have read much of that evidence carefully. In fact, I read most of it when I was a member of the scrutiny Committee. There is no lack of evidence for Committee members to read. I am not saying that it is a bad thing for people to talkto Conservative Members. However, it is clear thatwe have plenty of stuff to go on. There is loads of information.

Frank Cook: Order. You have repeated those words three times.

Doug Naysmith: I do not think that that is true.

Frank Cook: Order. Please resume your seat while I am on my feet. You have had far too long for an intervention and have been very repetitive.

Tim Loughton: Perhaps I can rise to speak without any hon. Member trying to intervene on me.
I shall bring my comments to a close by saying that at no juncture was there any intention to mislead the Minister, Committee members or the House about the nature of what was happening yesterday. The letter that went out to the hon. Member for Rhondda and all other Committee members said:
“It is our intention to make this impromptu committee cross-party and involve Members of both Houses.”
Invitations went out on that basis to all the people I have mentioned and to others who had been involved in the House of Lords—small parties as well—who we thought could contribute. We would have welcomed greatly the input of Labour Members with relevant expertise. There was never any intention to mislead. I cannot see what the problem is with an extra piece of research being discussed, particularly on the subject of community treatment orders, by the authors of the report. They took questions and debated with another witness who took issue with some of their findings. That was exceedingly helpful. That facility was not available to any Members of the House of Lords at any point during their deliberations on the Bill. Therefore, hon. Members being part of the deliberations yesterday could surely only improve the process.
I should like to make it clear that we will make the transcript of yesterday’s proceedings, which those who attended seemed to think was useful—all the witnesses were grateful for the opportunity to put their case, wherever it came from—available to all Committee members as soon as it is prepared. I hope that we can submit it formally to the Committee to be included in the Hansard evidence, along with the other witness memorandums.

Tim Boswell: Does my hon. Friend agree that perhaps the most important thing is not who did or did not attend the committee in the afternoon, but the attention paid to the points made in it and elsewhere in the extensive evidence that we have received from the Minister and other Committee members on this legislation?

Tim Loughton: My hon. Friend is right. That is why we did not just do it without recording it. We wanted something that people could use. I have to say that that is not unique. There was a similar sitting for the Offender Management Bill.

Frank Cook: Order. I think that we are all very clear in our minds—or we should be—what has happened and the intention behind it. If the written summary of the proceedings is submitted to me before the final sittings of this Committee, I shall consider whether it should be presented or not. If that satisfies the Committee, may we continue with the debate on the motion?

Tim Loughton: I am very grateful for that answer.

Question put and agreed to

Ordered,
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.
Written evidence to be reported to the House
MH 01 Martin Jeremiah
MH 02 National Children’s Bureau
MH 03 Rutlands Healing Group
MH 04 Children’s Commissioner for England
MH 05 Mental Health Act Commission
MH 06 British Psychological Society
MH 07 National Early Intervention Programme
MH 08 National Perceptions Forum
MH 09 Dr George Szmukler
MH 10 Royal College of Psychiatrists
MH 11 The Princess Royal Trust for Carers
MH 12 Hafal
MH 13 Shaun Johnson
MH 14 Mental Health Foundation
MH 15 Nacro
MH 16 Social Perspectives Network
MH 17 YoungMinds
MH 18 MIND
MH 19 Bro Tâf Voluntary Sector Mental Health Network
MH 20 The Law Society
MH 21 Mental Health Alliance
MH 22 Professor Genevra Richardson
MH 23 National Black and Minority Ethnic Mental Health Network
MH 24 Association of Directors of Adult Social Services
MH 25 British Association of Social Workers
MH 26 Rethink
MH 27 British Medical Association
MH 34 Hywel Davies
MH 35 Craig Nelson
MH 36 Kevin Fane-Saunders
MH 38 United Response
MH 39 The Sainsbury Centre for Mental Health
MH 40 Joint submission from British Associationof Occupational Therapists, the British Psychological Society, the College of Occupational Therapists, the Mental Health Nurses Association (part of Amicus), the Royal College of Nursing and UNISON
MH 41 National Assembly for Wales
MH 43 General Medical Council
MH 44 Alan Capps
MH 45 The Zito Trust
MH 47 National Autistic Society
MH 48 BMA and Royal College of Psychiatrists
MH 49 SANE
MH 50 The Royal College of Nursing

Frank Cook: We will now begin to consider the Bill proper.

Clause 1

Removal of categories of mental disorder

Question proposed, That the clause stand part of the Bill.

John Pugh: I want to take the opportunity to ask the Minister a few questions. I understand that the new definition of “mental disorder” is a heck of a lot better than what was in the Mental Health Act 1983. Having read that Act with care, I do not object to the change. The new definition is more colloquial and less misleading. The previous one dwelt on behavioural issues and confused a number of causally quite different conditions.
Specifically, under the definition, “mental disorder” appears to be something that results from illness rather than from any structural impairment of the brainor genetic deficiency. It is very helpful to draw that distinction. Lord Rix in the House of Lords was particularly pleased to see references to mental impairment disappear.
One assumes that by “mental disorder” one simply means the common neuroses; the psychoses, of which the symptoms are normally delusory states or hallucinations; bipolar disorder; personality disorder, which is understood in a wider context; and psychopathy. There are certain organic conditions, such as Korsakov psychosis and the like, which are definitely a consequence of the structural impairment of the brain in one way or another. Are they included in the definition of mental disorder? After all, we are not in an area in which there is absolute clarity. Even now, there are debates about whether schizophrenia is one condition or several. If there is a mental disorder that results from structural damage and is not genetic or inborn, is that included as a mental disorder in the Bill or not?
I have a constituent whose behaviour causes great concern. His parents are extraordinarily worried about him. He cannot get treatment from the health service because, although his behaviour is aberrant in many respects, it is a product of physical damage to the brain as a result of an accident, and not something inborn or a genuine impairment that he started off life with.

Rosie Winterton: Perhaps it would be helpful if I gave some background to the clause and explained why we have taken the decision to abolish the four separate categories of mental disorder, which are used in parts of the Mental Health Act 1983 as it stands.
What we have tried to do with the clause is to simplify the definition, so that we have a single definition of mental disorder throughout the Bill. The clause also simplifies, although it does not change the effect of, that basic definition to
“any disorder or disability of the mind”.
The reason why we wanted to remove the four categories is that they serve no useful purpose at the moment. They do not help with people getting the treatment that they need, when using the Act is the only option left, and they do not protect patients against inappropriate use of the Act. They are legal and not clinical terms. They do not relate directly to clinical diagnoses.

Tim Boswell: I think that my intervention will be supportive of the Minister’s point. Can she give the Committee any evidence as to where clinical freedom is being inhibited or made more difficult by the existence of somewhat archaic distinctions?

Rosie Winterton: I certainly will do. As I was saying, the definitions do not relate directly to clinical diagnoses. What counts legally as psychopathic disorder goes well beyond what the person in the street would probably mean by a psychopath, for example. Clinically, in many ways the legal definitions are a distraction. A clinician does not need to know which of those categories a patient’s disorder falls into in order to decide on treatment. The current law forces the clinician to spend time thinking about the categories. Importantly, they can also be a legal distraction. Time can be taken up by tribunals, especially when dealing with restricted offender patients, who might be trying to gain some advantage by arguing about classification when it has nothing to do with the risk posed bytheir disorder or the treatment needed to tackle it. Obviously, we believe that compulsion should be determined by a patient’s needs and the degree of risk posed by their disorder, not by the particular legal label applied.
The four categories in the 1983 Act create arbitrary and unnecessary distinctions between patients. Also, coming to the points raised by the hon. Member for Southport and the hon. Member for Daventry, the categories may leave some patients out entirely from certain parts of the Act. In other words, patients could be detained for assessment but not then detained further for the treatment that they need. I should emphasise that we are talking about a very small number of people here. There have been some misconceptions that somehow, by changing the categories, we are widening the number of people who might come under the detention provisions. That is not the case. A very limited number of people are not covered by the current “disorders”; they almost certainly include certain mental disorders arising from brain injuries acquired in adulthood. That may be the difficulty to which the hon. Member for Southport referred.

John Pugh: The Minister’s contributions are very helpful. Is it fair to say that the “mental disorders” described by the Bill do not match any particular set of clinical diagnoses, but are simply what psychiatrists at any one time in our culture define as a mental disorder?

Rosie Winterton: The hon. Gentleman is right. There are certain guidelines and international classifications of mental disorder, but essentially he is right that there is clinical discretion. It cannot be said that something that is not in any classification is not a mental disorder.
Likewise, to expand on some points about those small numbers who may not be covered, there may also be certain types of personality disorder that would not legally be mental illness but do not meet the current definition of psychopathic disorder, as they do not result in seriously irresponsible or abnormally aggressive conduct. Even so, to go back to the cases that the hon. Gentleman has raised, such a disorder could cause the person concerned great suffering—serious enough to make serious self-harm or suicide a real possibility. Therefore, in practice, I suspect the reality is that people are found ways of getting that treatment. I am sure that there are some people who would say, “Well, somebody can be put under that category”. However, given that we are trying to improve and to modernise our legislation, it is important to take this opportunity of having real clarity here.

John Pugh: With regard to psychopathy, I understand that that term is becoming almost clinically unfashionable. It is being replaced by “personality disorder”, in much the same way that manic depression was replaced by bipolar disorder. As a result of the amendments, will the term psychopathy retain any legal significance or value whatever in legislation?

Rosie Winterton: No, it will not.
I should also assure the Committee that there has been a general welcome for the changes that we are considering in clause 1. There is general agreement that these legal categories have not necessarily contributed anything particular to treatment or care and, again, for the small number of people who are excluded, it is important to have clarity.

Tim Loughton: The Minister mentioned just now that the new definitions will not broaden the net. However, is it not the case that the new definition covers all the diagnoses listed in the international classification of diseases 10—some of which eventhe Government acknowledge may be appropriate for compulsory powers—and that nothing in the Bill confines the definition to the conditions listed in ICD 10 or the American diagnostic manual?

Rosie Winterton: No. As I have said, there are international classifications. That does not mean that those are the only things that can be counted as mental disorders. Clinicians can make diagnoses. I emphasise that, within the Mental Health Act 1983, there is the obvious ability to appeal to a tribunal. First, though, two doctors have to agree that a mental disorder is present. If that is disputed—if the patient believes that they have no mental disorder—they can take it to a mental health tribunal to challenge it.

Angela Browning: In the regulatory impact assessment for this proposal, the Government outlined the risks and benefits and I note that the Minister does not regard that there will be any additional costs as a result of a change in this part of the law. Does she not think that advocating the opportunities for appeal and tribunals will mean that there will be more challenges, which will have a cost impact? I raise that matter because this change, and what its consequences may be, has been sadly neglected in the regulatory impact assessment. If the funding is not there, the safety blanket that she has just described will not be met, through lack of resources.

Rosie Winterton: I am sorry, but the hon. Lady may have misunderstood what I was saying. I was simply pointing that, if a patient disagrees—it is important for them to have those rights—and if they feel that they do not have a mental disorder and want to challenge that, they can appeal to the tribunal. Personally, I think that it would be difficult to start saying, “Let’s not talk about the tribunal, in case people start appealing to it”. I am simply saying that that is the path which people would follow.

Tim Boswell: My colleague may also want to intervene on the Minister but, to put a gloss on my interpretation of what she said, it seems self-evident that, if one is making more flexible the definition of mental disorder, a larger number of people in the population, albeit a small number, will be susceptible to the provisions of the Mental Health Act and will therefore be able to avail themselves personally of the appeal mechanisms of the Act. My hon. Friend the Member for Tiverton and Honiton made a point about the resource implications. I make no judgment as to its merits, but it requires an answer at least.

Rosie Winterton: I refer the hon. Gentleman and the hon. Member for Tiverton and Honiton to my previous comments about restrictive patient offenders. One of the current difficulties is when people argue in front of the tribunal about the classification into which they have been placed. I want to turn matters the other way round. At present, a tribunal’s time can be taken up arguing about the classification of people and, thus, by removing the false categories, we are more likely to increase the tribunal time.

Angela Browning: We will debate communication disorders in a minute—something that I seem to be causing myself at the moment—but I wish to pressthe Minister about the fact that, listed under the Government’s risk option 2—the recommendation for a single definition of mental disorder—they identify the new appropriate treatment test. It will ensure that an holistic assessment is carried out in each case. I do not disagree with that. Of course, it is a good thing, but surely there are resource implications in such an approach.

Rosie Winterton: I am not quite sure of the hon. Lady’s point. If we remove the present categories and less tribunal time is spent arguing about the categories, other parts of the Act have to kick in, as they do at the moment. It is absolutely right that appropriate medical treatment is available and that it is part of the conditions of detention. Half of the Opposition’s argument is that, under the Government’s proposals, people will not receive treatment. However, now the hon. Lady is arguing that people will receive too much treatment under the Government’s proposals.
Chris Bryantrose—
Angela Browningrose—

Rosie Winterton: I shall give way first to my hon. Friend.

Chris Bryant: I think that I will misinterpret the hon. Lady a little further. She seems to be suggesting that, because we are changing the definition of mental disorder, each disorder in the ICD 10 list—a long list, as the hon. Member for East Worthing and Shoreham said—would suddenly fall under the Act and therefore everyone might be up for detention. The truth is that the vast majority of those several different layers, both organic and other conditions that are termed in the ICD 10 list as mental disorders, would not be recommended for detention at all.

Rosie Winterton: I give way now to the hon. Member for Tiverton and Honiton.

Angela Browning: I am raising matters that areon the record in the Government’s own impact assessments under the heading “risks of option 2”. They themselves have identified those risks. I am challenging the Minister because I am not convinced that she has fully estimated in the regulatory impact assessment the resource implications of the changes. If those changes have not been properly calculated within the regulatory impact assessment, there will be long delays for people wanting to access those parts of the Bill. She herself has identified the risk.

Rosie Winterton: I want to emphasise that we have undertaken the regulatory impact assessment. We believe it to be accurate, and I think that there are lots of counter-balances in that regard. The hon. Lady says that by advocating tribunals, one increases the costs. I would also say, as I have said before, that by reducing the categories, one spends less time quarrelling about them in tribunals.

Ann Coffey: Is my understanding correct? The category of mental disorder has not been extended. All that has happened is that the two categories of mental disorder and psychopathic disorder, which were in the 1983 Act, have been brought together under the one category of mental disorder, with the term psychopathic disorder being omitted. Therefore, there is not a new definition of mental disorder. That is my understanding. I do not see why there should be any more resource implications than in the 1983 Act.

Rosie Winterton: As I have said clearly, we do not believe that the change broadens the definition and brings more people into it. There are small numbers of people who unfortunately fall outside that definition. However, I suspect that in many cases, ways will be found to get help to those people.
Therefore, the change that we propose has generally been welcomed. I hope that the additional information I have given will reassure Committee members that we do not intend to increase the numbers of people who are likely to be treated under the Bill.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 2

Learning disability

Angela Browning: I beg to move amendment No. 40, in clause 2, page 2, line 4, after ‘disability’, insert
‘or an autistic spectrum disorder’.
I am pleased to speak to the amendment, which is supported by my colleagues. The subject has been discussed in the pre-legislative scrutiny Committee and also in another place. The amendment seeks to add autistic spectrum disorders to those areas that have been modified to accommodate the needs of people with learning disabilities. The Minister and I have shared many a conversation about the matter. I am very grateful that she has agreed to discuss it again on Thursday privately.
I would like to use the opportunity of moving the amendment to clarify the reason why the issue is so important. I should begin by declaring my interest as the vice-president of the National Autistic Society. I also hold positions on other related autism charities.
The purpose of the amendment is to ensure that people with autistic spectrum disorders are recognised in the way that the amended Bill now recognises learning disability. I am familiar with the Government arguments, both in another place and elsewhere, about their reluctance to draw up a list of conditions that are exceptions to the rule. However, given the background on learning disability—its recognition in the Bill and the way in which it is dealt with in the 1983 Act, which I will mention in a moment—this is a special case.
I am sure that the Minister has heard a lot of special pleading from people who are concerned about a range of disabilities and believe that there is a case forthose to be recognised in a Bill, rather than ignored altogether or tucked into a code of practice. However, I want to make a case for making a special exception for autistic spectrum disorders. There are many reasons for that, not just because I have an interest in the subject.

Tim Boswell: Does my hon. Friend agree that, notwithstanding my less extensive experience of such conditions, this is a particularly sensitive matter and certain people with autistic spectrum disorders may be rather high performers, whether they have Asperger’s syndrome, and may not, in some definitions—including locally, in my experience—be regarded as learning disabled on account of that? However, both in terms of some of their social behaviour and their need for social support, such people are clearly in this category, without being mentally disabled in any sense.

Angela Browning: My hon. Friend is right. A diagnosis of an ASD does not mean that someone has a mental disorder, but we all recognise that there can be a multiple diagnosis. For example, a person with ASD can have a learning disability and can—frequently,they do—have a recognised mental illness. Sometimes people have a combination of all three things: a triple diagnosis is not unknown. Cases can be complicated and often difficult for the professional psychiatric services to understand properly.
I should like to put on record the concern of the National Autistic Society, which understands the need for a clearer definition of a mental disorder. I do not think that there is any disagreement about that. However, it is concerned that, because of the changes and the lack of recognition of how ASD presents itself—and our greater knowledge of it now, compared to when we legislated on mental health in 1983—more people with an ASD could be inappropriately detained.
I remain to be convinced by the Governmentthat there is a case for people with an ASD being compulsorily detained for treatment if they are not mentally ill or, in the context of the clause, they do not exhibit
“abnormally aggressive or seriously irresponsible”
behaviour. That is why the recommendation of the Joint Committee on the draft Bill, of which I was a member, identified ASDs, in addition to the exclusion for learning disability, as the one condition to which we felt that the Government should pay due regard. We took evidence from a lot of people, representing those with a range of quite legitimate conditions, who made that case. However, autism, which is a complex condition, is different and I should like to explain why that is so.
Autism is a lifelong disability. It is a developmental disorder and is not something that people catch. We do not know yet what causes it, although there is a lot of research being undertaken in this area, but we know that, although it is different in every individual, it presents with three core deficiencies that have a huge impact on people’s lives and behaviour.
Autism leads to a lack of understanding of social behaviour and problems making social relationships. I am putting this in layman’s language, rather than talking about what we sometimes call the triad of impairment, which is language that just floats over people’s heads. For children, that can mean failing to make friends in the playground. Going to a school for children with autism and seeing them at play time is quite a shocking thing. One does not see, as normal, children running around, interacting and playing with each other, or creating any imaginative play. Lack of imagination, of an ability to put oneself in somebody else’s mindset, is part of the triad of impairment. Children in such a school at play time will either stare into the middle distance or be preoccupied with repetitive behaviours.

Tim Boswell: Does my hon. Friend recall that one of the celebrated books written by someone who was subject to an Asperger’s definition was entitled “A Martian in the Playground”, which makes her point?

Angela Browning: Indeed. I began by talking about children because it is perhaps the one area in which in the past 10 to 15 years we have started to make some progress. I am not complacent, but we have started to give recognition in our education system and through social services departments. First, early diagnosisis important; the Minister will know how early intervention is key after picking up the symptoms and signs of autism. Early intervention and management of the condition are extremely important. Managementof the condition very often depends on appropriate resources being available, but certainly in the education scenario we are in a very different position from that in 1983, when the previous Mental Health Bill was drafted. I am old enough to remember that personally—

Tim Loughton: Surely not.

Angela Browning: My hon. Friend is most kind, but sometimes it is better to be older and have a longer memory.
Let us recall that excellent report by Baroness Warnock in the late 1970s, which looked at the way in which we educate children with learning disabilities. Back in the early 1970s it was not unknown for children with learning disabilities, which would have included a wide body of children with autism, not to be considered suitable for education at all. The ground-breaking Warnock report led to education legislation that started to introduce the statementing process and to the formal recognition in statute of the rights of children with a learning disability to receive an education appropriate to their ability to receive it. That was within the lifetime of most of us in this room, but at the same time as the Mental Health Act 1983 was being drafted. So, I can fully understand why—although we have a better knowledge of learning disability per se than back in 1983, when the Mental Health Act was being drafted—we were only at that point just getting to grips with how we handle the education of children with a learning disability, which would have included autism.

Meg Hillier: It is a pleasure to serve under your chairmanship, Mr. Cook. I am very interested in what the hon. Lady has to say—I have been an advocate for a relative with a learning disability, so it is an area that greatly interests me. I wonder whether the hon. Lady can answer a couple of questions.
First, how many people with autistic spectrum disorders have been detained under the Mental Health Act 1983? Secondly, is she not effectively arguing against the amendment? She is saying that our understanding of autism is so much greater nowadays that the idea of a psychiatrist considering anyone with autism to have a mental disorder is as remote as their considering someone with a learning disability to have a mental disorder. Back in 1983 there would perhaps have been more argument to have included autistic spectrum disorder in the Bill.

Angela Browning: The point that I am trying to make, which I hope to expand, is that because our understanding is so much greater—I am beginning with children, but I will move on to adolescents and adults—we should be looking at the mental health legislation in a totally different way to how we looked at it in 1983.
The hon. Lady asked me how many people had been detained. There have been two bigger pieces of research recently, one by the National Autistic Society and the other a report, from which I will quote in a moment, by the Royal College of Psychiatrists. We know the figures for people with an identified autistic spectrum disorder who come within the criminal court system. However, a huge number of people in our prisons almost certainly have an ASD. We are looking at that as a body of work at present. There is a big debate to be had about how appropriate it is for such people to go into the criminal justice system. It is difficult to put a number on it in quantifiable terms.
I know that this has been put to the Minister before, but can she identify the number of people with an ASD diagnosis who are deemed potentially dangerous and therefore cannot be treated in the Bill in the same way as those with a learning disability? At the moment, we have seen only the tip of the iceberg in terms of adults; as you go up the age scale, the available statistics are certainly fewer and fewer. We still have a great many people in the latter half of their lives who are in the community but as yet undiagnosed. Not until they come before the criminal justice system, or until there is a huge breakdown in their mental health, or social services suddenly become involved with them for some reason are these individual cases picked up. The figures are not collected so we do not know the exact number, but it is severely underestimated at present.

Meg Hillier: Does the hon. Lady really fear that people with autistic spectrum disorders will be detained under this Mental Health Bill? Does she want ASD included for completeness’ sake, or is there a realthreat that a psychiatrist would have such a lack of understanding of the seriousness and the range of such disorders that they would section or recommend sectioning somebody, rather than recognising that the person had autism?

Angela Browning: Yes, I do believe that there is such a threat. I raised the first Adjournment debate in this House on Asperger’s syndrome a few years ago, and followed it up the next year with one on the psychiatric treatment of people with Asperger’s. Indeed, I thoroughly welcomed the 2005 report of the Royal College of Psychiatrists. It is absolutely essential that the professionals get to grips with that condition, of which there has been only a restricted understanding until now. The point that the hon. Lady just raised is my point exactly. However, there are more complexities to it, and I am coming to them.
I believe that ASD should be recognised alongside learning disability under clause 2. We are not trying to prevent people with an autistic spectrum disorder from receiving appropriate mental health services nor, for that matter, are we saying that they should never be detained since, like the rest of the population, in certain circumstances they would need the security of detention. There are behaviours associated with ASDs that do not have a psychotic base but are normal and triggered by events.
I turn to a particular example. Later on, in part 2, we will deal with how the Government are going to deal with the Mental Capacity Act 2005 to take account of the decision of the European Court of Human Rights in the Bournewood case. We should not forget what Bournewood was about. It involved an adult man named HL with an autistic spectrum disorder—a gentleman whom I have met. It was quite clear that the episode leading to his detention was event-triggered rather than an underlying psychosis. His carers had the perseverance to take the case through every court in this country and eventually to the European Court of Human Rights, and as a result the Minister will now amend the law to ensure that the experience of HL is not replicated and that there is more protection in future legislation for people in his position. I, of course, support that and I hope to contribute to that process of amendment when we reach that clause of the Bill.
I have personally heard first-hand accounts about how HL went from a day centre to being detained for a very long time, to his detriment, without the people who knew him best having an opportunity to explain to medical professionals why it would have been, in their view, normal behaviour for him to have presented in the way in which he did when an event triggered an episode. I remind the Minister that that is how, very often, even the most able people on the end of the spectrum can behave in a different set of circumstances.
So what is autism and why is it different? We know from the figures that, of the population of working age, there are about 330,000 people with autism. Of course, there are more children with autism coming through and people often ask why autism is more prevalent today. Personally, I believe that it is because we are much more aware of it, have a greater knowledge of it and there is more early diagnosis.
I have mentioned the fact that we have had a history of late diagnosis, but why is that? It is because autism is a spectrum. If we examine our early understanding of autism—that is what the Mental Health Act 1983 would have considered—we see that Kanner identified autism in 1943. The Kanner definition of autism influenced psychiatric understanding in this country for some years, although it was not until the 1960s that there was much recognition of the distinction between autism and other conditions. Perhaps more prevalent in recent years has been the understanding of Asperger’s syndrome, which is on the more able end of the spectrum. Asperger identified Asperger’s syndrome at about the same time in the 1940s as Kanner defined autism, but it was never really recognised, and it was not part of psychiatric teaching and training until very recently.
It is the strange combination of an autistic spectrum disorder with that triad of impairment that leads to the very distinct diagnosis that is an autistic diagnosis. However, in the case of Asperger’s syndrome, it means that there can be people who present who are extremely able indeed. In fact, from an educational perspective, many can go on to university degree level, so that gives an idea for the range of abilities. Indeed, I have been told by the faculties of some of the Oxford colleges that most of their mathematics and physics departments are well populated with people who might have, or who might be diagnosed with, Asperger’s syndrome. There is nothing detrimental about that.
Furthermore, if we consider some of the footage that we have seen of the people who cracked the Nazi codes in the UK during world war two, I recall seeing what looked like an amusing piece of footage. It showed someone who was intelligent enough to crack the codes but who would also, every afternoon at four o’clock, walk down through the grounds of the HQ to the lake, carrying his cup of tea, drink his cup of tea and then throw the teacup and saucer into the lake. That was repeated on a regular basis.
Such behaviour, one might think, is idiosyncratic, so where is the depth of concern about that? However, I would say that that is just one example. I will give another example, again of my own experience—in fact, there are myriad examples—of a gentleman who lived, undiagnosed, with his parents into his 40s. When the second parent died, he was left in the house on his own, completely unsupported, for the first time ever. It was only at that point that he really came to the attention of the social services department. The reason that he came to their attention was because he never went out of the house; the neighbours had seen him a little, but he had never given them any cause for concern. However, after his second parent died, the neighbours noticed, to their great concern, that after it got dark he was to be seen digging up the garden by torchlight. They were concerned that he was burying something, because they found him to be an odd person to deal with andto communicate with, and, therefore, reported his behaviour to the social services department. When the department intervened, it discovered that he was digging up the garden at night because he had a passionate interest in gardening but did not like being around other people. He found that, when it got dark, people did not lean over the fence and ask, “What are you planting there?”, to which he would have to find a reply, and communicate and socialise with them. Therefore, it suited him to maximise his ambition of gardening by doing it at night. I am pleased to say that I have met that gentleman, who is now working under supervision, potting plants in a greenhouse. He has, therefore, maximised the opportunity to do what he always wanted to do.
On first sight, some of the people who present in what may seem to society to be an odd way are intelligent and have other abilities. Despite the idiosyncrasy of that particular episode, in other circumstances, that gentleman could present himself as someone who has the capacity to express a view about what he wants to do.

Ann Coffey: The hon. Lady is making a good case for more knowledge about, and understanding of, autism. In relation to this Bill, she seems to be concerned that those who are autistic will be diagnosed as having a mental disorder and could be detained in hospital against their will. However, I am not clear about how making an exemption will help. If the assessing psychiatrist does not diagnose people as autistic in the first place, any exemption on the face of the Bill for autism will not protect them. Surely the way forward is to ensure that the psychiatrists who undertake mental health admissions have as extensive a knowledge of autism as possible at the point of assessment.

Angela Browning: The hon. Lady has made a good point, and psychiatrists’ knowledge about this group of people is a matter that I have raised in debate many times. Despite the 2005 report of the royal college, it remains true that we are fortunate in some of ourinner cities, as we have a resource of psychiatrists who understand autism and who work with people who have learning disabilities. The run-of-the-mill provincial psychiatrist—if I may use that terminology—does not experience enough of these cases to get sufficient working knowledge of what is and is not appropriate behaviour.
The point about the Mental Health Act 1983 does not relate to the sort of situation that I have just described, involving my gardening friend. I raised that example to illustrate the breadth of the situation. However, when these people are in crisis, it is not because they have a mental illness—and if they have a mental illness, of course they should be entitled to the same treatment and services as everyone else—but because the nature of having an autistic spectrum disorder means that many people, including those with a high intelligence quotient, sometimes present in a challenging way, or in a way that may be regarded as inappropriate.
At this point, it would be a good idea to quote from the report of the Royal College of Psychiatrists, which I have referred to many times. I am conscious that I have been critical of psychiatrists over the years, not least because there is a prevalence of people with autistic spectrum disorders who present in a challenging way being admitted as in-patients, sometimes even when they have an autistic spectrum disorder clearly diagnosed by another professional. Psychiatrists commonly believe that those people have schizophrenia, and all too often medicate them accordingly. Given the nature of the drugs used to treat schizophrenia, what happens next is that they start to go through the list. If the first drug does not work, they move on to the next. By the time someone is on their fourth or fifth drug, and that still does not work, it is very difficult to unscramble the situation to get a clear view of whether the initial or ongoing behaviour is a psychosis, or whether it is autistic behaviour, which, if they were harming themselves or others, I quite agree would need intervention.
If I may, I would like to quote from a report by the Royal College of Psychiatrists. It is an excellent report that indicates why, when these people are inappropriately detained or brought within the ambit of mental health services inappropriately, it is not only an injustice in terms of human rights, but is detrimental to the way in which they recover from the incident that caused it. The Royal College of Psychiatrists report states that
“Autistic-spectrum disorders are not an illness but a disability that can have a major impact on the development, presentation and management of psychiatric disturbance.”
The following point is one that I would particularly like the Minister to understand, because it explains why those people are different from other groups:
“They fall into a limbo between the various psychiatric specialties, their ability putting them outside learning disability contracts but with developmental disabilities that, once they have outgrown child and adolescent services, may be unfamiliar to the various specialties dealing with adult mental health or else fall outside their remit. These issues are touched on in the Council report on services for individuals with mild or borderline learning disability (Royal College of Psychiatrists, 2003). This report emphasised that the defining criterion for acceptance by the services provided by learning disability psychiatry should continue to be a measured overall intelligence quotient of less than 70. At the same time it recognised that individuals with an autistic-spectrum disorder were a group who, at times, might be better served by learning disability services.”
The link with the way in which such people present is not unfamiliar to people who deal with learning disabilities, but at the same time you are dealing with people who do not necessarily have an IQ of under 70. In most cases, if you have an IQ under 70, you are regarded as being learning disabled.
I want to draw the Minister’s attention to the point that the prevalence of behaviour and the way in which it is managed is not that far distanced from learning disability, despite the variation in IQ and people’s potential, particularly those who are at the moreable end.
The Government have produced a White Paper, which I certainly welcome. It is called “Valuing People: A New Strategy for Learning Disability for the 21st Century”. When the Government first produced that paper, because of the benchmark of an IQ of 70 or under to indicate learning disabilities, they excluded people with Asperger’s from accessing services from the social services learning disability teams. As a result of a number of people—not only me, but a number of others—jumping up and down when we read this, the Department of Health then issued a circular.
I carry these documents around with me to this day. Every time I give a talk on autism, people come up to me afterwards and say, “Let me have a copy of that Government circular”. I have several copies of this, which I give out. The Government realised, to their credit, that to deny people with Asperger’s syndrome the right to access services through the learning disability team was doing those people a grave disservice. They put out guidelines that said:
“This guidance focuses mainly on action to implement the proposals for improving the lives of all adults with learning disabilities—those with severe and profound learning disabilities through to those with moderate or mild learning disabilities. Adults with Asperger's Syndrome or higher functioning autism”—
those with an IQ of over 70, of which there are a great number—
“are not precluded from using learning disability services, and may, where appropriate, require an assessment of their social functioning and social skills in order to establish their level of need.”
In other words, our knowledge of how people with Asperger’s syndrome function in practice, on a day-to-day basis, is something that we know far more about now than we did when the Mental Health Act 1983 was drafted. It is also something that the Government have picked up on, sometimes with a bit of prompting, as they start to legislate in other areas.
If the Bill is to last another 20 years, we should consider our knowledge of how autistic spectrum disorders are managed and how people with an ASD function in their day-to-day lives, particularly when they come into contact with services, especially mental health services. We should recognise that there is a correlation; it is not that people with an ASD are necessarily learning-disabled, but there is read-across in respect of how we treat people with a learning disability. The point is that they are different. They may have an IQ of more than 70, but they behave differently from how one would expect people with such an IQ to behave.
It is such behaviour that unfortunately all too often brings those people into contact with the mental health services and professionals who do not understand and cannot disaggregate what I would call normal autistic behaviour and a psychotic basis for their behaviour.

Ian Gibson: The hon. Lady obviously has an intense interest in the subject and a deep knowledge of it. Having talked to people in the field, can she speculate about how research work is progressing? Such research might relate to genetic causes, for example, and might alleviate some problems. What is likely to happen in that field over the next 20 years is pertinent, as she said.

Angela Browning: I will send the hon. Gentleman details of an excellent Medical Research Council paper that deals extensively with the subject. Having been asked that question, I shall put on record my view of some of the various theories about the causal basis of autism, which I have declined to do before, primarily because—

Frank Cook: Order. Anxious as I am to maintain the technical nature of this debate, it is important that we focus our minds on the points in sequence. We are discussing our ability to include autistic spectrum disorder in the clause. We will do ourselves a favour if we concentrate on that, rather than on research which might, or might not, take place in the future.

Angela Browning: Thank you, Mr. Cook. I will speak to the hon. Member for Norwich, North privately on the subject as he has shown such an interest in it. You may have noticed, Mr. Cook, that I have an interest in it. I frequently feel that I must apologise for my fixation on it, and for talking about it ad nauseam.

Chris Bryant: Is that a disorder?

Angela Browning: Yes, indeed. Many hon. Members know that I have a 35-year-old with Asperger’s syndrome and I sometimes say jokingly to other members of my family when they go on too much about the cricket, for example, “Just remember there is autism in the family.” I think it has a genetic base.
May I move on, Mr. Cook?

Frank Cook: Please do.

Angela Browning: I want to make the case for the Bill to treat learning disability and ASD in the same light, despite the differentials in the two conditions, and to move on to the legal aspects of psychiatry in relation to people who have them. I shall draw from council report 136 of the Royal College of Psychiatrists entitled, “Psychiatric services for adolescents and adults with Asperger syndrome and other autistic-spectrum disorders”, which was published in April 2006, not 2005 as I said earlier. I very much welcome the report, which particularly informs this debate. In the section headed “Legal aspects of psychiatry”, the psychiatrists say:
“Most individuals with autistic-spectrum disorders are keen to avoid trouble with the law and most do not offend.”
That is absolutely right. There is no propensity for them to offend more than the rest of society. The report continues:
“This law-abiding respect for rules can be offset by a number of predispositional factors that make the individual more vulnerable.”
There is a vulnerability to such conditions that needs to be recognised as well. As I mentioned earlier, social naivety and misrepresentation of relationships can lead such people into problems with the criminal justice system. The report argues that
“misinterpreting rules, particularly social ones, whereby individuals can find themselves unwittingly embroiled in offences”
and behaviour in which they are led on by others has consequences for them with the criminal justice system. I would also argue that in certain circumstances their behaviour might well bring them to the attention of psychiatric services.
In particular, the report states that
“impulsivity, sometimes violent, that may be a component of a comorbid attention-deficit disorder, a state of anxiety turning into panic or a confusing blend of both. The result is a response that is out of proportion to the situation”—
I would argue that that was the situation in the detention of HL in the Bournewood case. For example, what in children could be regarded as a tantrum, could in an adolescent or adult be believed to be a threatening episode. That is why it is very difficult to explain what I mean by normal behaviour. Clearly, nobody wants anyone to be exposed to a threat, and neither do we want people to self-harm.
More often than not, however, such tantrum-like behaviour in adults with autism is event-influenced, rather than psychotically influenced, as I have said before. I shall give the Committee an example of how such behaviour might present itself. We know that people with autism often follow ritualistic routines. For example, some feel that they must eat at a certain time of day. I know of one young man who, every Sunday, takes two bus journeys to eat at the same restaurant. Most of us would get thoroughly bored with that routine, but for somebody with autism it is a security indicator—they know that next Sunday will be the same as this Sunday. If followed, that pattern provides comfort and security—next Sunday will be predictable.

Tim Loughton: Some MPs do that.

Angela Browning: Indeed. We will see who eats everyday at 6 o’clock in the Members’ Dining Room.
That predictability might seem pretty benign, but if disrupted by external circumstances, such people do not just have a tantrum in the same way as a small child might if deprived of sweets. In the mind of somebody with autism, such disruption is a major event, and a third party might interpret their response as out of proportion. However, it is a really serious matter for the autistic person that totally undermines how they had reckoned that the day would turn out. As a consequence, for an adult, their response to something as minor as having their routine being disrupted in such a way would come across as totally unreasonable. It is particularly difficult for people with whom the autistic person does not have a confident relationship—there will be very few with whom they do—to rationalise and negotiate their way out of such a situation.

Ann Coffey: It is, of course, terrible that people are misdiagnosed, whether for physical illnesses or mental health problems, because there can be a stream of consequences for their treatment that put them at a disadvantage and make their condition much worse. However, I do not understand how the hon. Lady’s amendment would prevent psychiatrists who do not understand autism from diagnosing somebody, in a mental health assessment, as suffering from a mental disorder when in fact they suffer from autism. I just cannot see how the amendment would help. We cannot protect through an exclusion unless the mental health professional making the assessment understands that they are dealing with somebody with autism.

Angela Browning: The hon. Lady is right, and that is not actually the basis of what I am saying. What she has just expounded is exactly what happens in some cases. Having been critical of psychiatric services, I must say that I am convinced that the royal college is getting to grips with the problem through training and so on.
The behaviour of people with ASD may well have a qualifying basis. If we are to make an exception for somebody with a learning disability—an IQ of less than 70—unless, as the Bill states, it is
“associated with abnormally aggressive or seriously irresponsible conduct on his part”,
the same should apply to autism because of the way in which it presents itself. It is very different from any other condition, except that one can measure it as a learning disability. There can therefore be quite a read-across, as interventions for those with learning disabilities can apply equally, if resources are available, to those with ASD.
The royal college’s report mentions the services for individuals with a learning disability, and again one can see the comparator used between how we treat people with learning disabilities and those with autism. It states:
“Increasingly, services for individuals with a learning disability have become familiar with autistic-spectrum disorders, and where there is a significant intellectual disability, they are ready to engage with these individuals. When disturbed, their management is often a matter of improving communication, their environment and their level of support rather than of more traditional individual psychiatric treatment.”
In other words, as we learn more about the management of people with ASD we can see some of the lessons that we have learned from the management of people with learning disabilities. We do not just lock them up when they are “having an episode” unless, as the Bill states and I support, they demonstrate
“abnormally aggressive or seriously irresponsible conduct”.
So there is quite a read-across in the management of people. It is not about locking up people who might suddenly in one way present as potentially having a mental disorder, because they might not have a mental disorder any more than does someone with a learning disability who is behaving in the same way. The test for psychiatrists is to disaggregate the two set of behaviour, which is why the matter is difficult and there is a need for specialisms. In some of our hospitals in London and other large cities there are psychiatrists who specialise in autism or in learning disabilities, so they can disaggregate types of behaviour and understand clearly what the appropriate treatment is.
The royal college report continues:
“These issues, while familiar to learning disability psychiatry, also apply to individuals of normal cognitive ability, although their ability may well bar their acceptance by an element of the learning disability service”.
We have discussed that in relation to the Government’s health White Paper. The report also states:
“There is therefore the risk that such vulnerable patients fall between contracts despite their statutory entitlement to psychiatric services”.
The situation, particularly for adults and adolescents who present behaviour that is treated by psychiatric services, is only as good as the knowledge of the people treating them. In managing behavioural episodes, it is clear that although we make allowances for people with learning disabilities, we do not for people with autism because they do not present in the same way or because they have a higher IQ.
Psychiatrists understand that somebody might have great ability in one area of their life but behave in a certain way because they are autistic, not because they have a psychiatric condition. That is why we should recognise in the Bill the fact that that group of people is different. I cannot think of another group who would present in such a way in certain circumstances andyet not have a psychotic base. Very often such people present themselves as intelligent, and despite what people say about autism, they can be quite articulate—sometimes inappropriately so. They are different from other sets of people and we should recognise that.
The Bill is making provisions for the future. It has to look forward and not simply deal with our assessment of how things are now. We already recognise in other parts of government that we have a better understanding of autism than we had 20 years ago, and that should be reflected in the Bill. The fact that it was not recognised in the 1983 Act is no argument. We know from the casework around the country that more and more people will fall within this grouping who need the attention of services. When it is psychiatric services that they require, they need more equality, not less.
More and more cases of people with autism who have been denied access to appropriate services or treatment are coming before tribunals and the courts. The HL case is a classic case in point. People are starting to ask themselves, very often with legal backing, “Is this right in terms of civil liberties? Is this right in terms of what we understand these people need and the sort of attention they should be receiving?” More often than not, particularly when I look at my social services casework, once one has cut to the chase and challenged the social services on behalf of someone with autism, they settle out of court.
The Government would do well to recognise that our knowledge and awareness of autism and what is and is not an appropriate treatment or package of support are increasingly such that when we challenge social services, the courts tend to rule in our favour. The Government should take that on board, because to deny it at the stage at which legislation is being introduced is not merely negligent, but a concession that they know this but are not going to do anything about it. That is indefensible behaviour towards a vulnerable group of people. All the statistics show that as a group they are not an increased risk to other people, but people who themselves need support and appropriate services.
The Royal College of Psychiatrists points out in its report the need to address inappropriate detention under the mental illness category, detention of this group in inappropriate settings and detention for longer than is absolutely necessary. This group of people is already discriminated against. If that is what psychiatrists identify as the problem, specifically with regard to the interaction of such people with mental health services now, surely the Bill should aim to improve their lot in future. We cannot do anything about the past, but we can do something about the future. The information is there; it is on the record.
That is why I am asking the Minister—colleagues will be pleased to hear that I am concluding my remarks—to think again about whether those with an ASD are different. I believe that they are, and I hope that the examples that I have given show how and why they are and, in particular, why the Bill, rather than the code of practice, should associate the appropriate treatment of their needs by mental health services with the conditions identified for people with learning disabilities.
The hon. Member for Stockport identified the need for better and more specialist services and for better recognition, which is an issue that I discuss all the time. Although we can do nothing about such issues in the Bill, we can ensure that it recognises people with ASD, and I stress that they are people—people who, as a result of whatever fate has befallen them, will live with this condition for the rest of their lives. However, although they are born with it and will die with it, we can make a difference to what happens in between. We need to do more to improve their quality of life and the way in which they are treated between the time they are born and the time they die. At the moment, we are nowhere near getting that right.

Frank Cook: In presenting her amendment so comprehensively and clearly and with such passion, the hon. Lady obviously had to compare the particular condition of ASD with many others, and she therefore expounded on more general matters in the clause. For that reason, I am happy for the Committee to expand discussion of the amendment into a clause stand part debate. We shall pick the bones out of the Divisions later.

John Pugh: I support the amendment and pay tribute to the hon. Member for Tiverton and Honiton for all the work that she has done on autism. I noted her example of the man digging the garden in the dark, and there is nothing essentially pathological about that. The last time I did it, I was burying the cat, although I should say that it was dead, and I needed to explain myself to the milkman as he came past.
We are learning that psychiatry is not an exact science, particularly when it comes to the classification of ailments. I think that we all accept that autism covers an extraordinarily wide spectrum, but is genuinely a learning disability. However, it is also linked—this is a key point—with social disabilities,and sometimes with disturbed but non-psychotic behaviour. There is therefore a real danger that it will not be treated correctly under the legislation, and there is a real case for giving it a proper and appropriate mention. Autism, like many learning disabilities, is essentially hardwired into the soul; it is an impairment, not an illness. If any form of coercion is required, the Mental Capacity Act 2005 is available, although Lord Rix in the House of Lords thought that even that did not give sufficient protection in every circumstance.
The hon. Lady said dual diagnosis was a special problem, but that argument was less convincing. Dual diagnosis crops up all the time, creating clinical and legal challenges, but those challenges are the same, whether we are talking about autism or dementia. None the less, given the link between ASD and often quite disturbed social behaviour, there is a case for including it expressly in the Bill, and I support the amendment.

Rosie Winterton: I should like to start by paying a warm tribute to the hon. Member for Tiverton and Honiton, who has put in a lot of work over the years to advance the cause of people on the autistic spectrum. As she mentioned on Second Reading, she is vice-president of the National Autistic Society, and the founder member of the all-party parliamentary group on autism. I was on the edge of my seat waiting for the thoughts that had not been put on record before, but that will have to remain between her and my hon. Friend the Member for Norwich, North. I look forward to finding out what they actually were.
I think that it would be helpful, particularly as the hon. Lady set out so clearly the reasons why she has moved the amendment, for me to refer back to why there is the exclusion or exception for learning disability, and why clause 2 exists in the first place. As hon. and right hon. Members know, there has been a lot of debate about learning disability itself and whether it should be excluded. Let me go back to what we have now achieved in terms of the Bill. It will mean that people with learning disabilities can be detained for medical treatment or made subject to guardianship on the basis of their learning disabilities alone only if those disabilities are accompanied by
“abnormally aggressive or seriously irresponsible conduct”
on their part. Similarly, it will ensure that people with learning disabilities cannot be made subject to the new provisions for supervised community treatment solely on account of their learning disabilities, unless, again, they are associated with
“abnormally aggressive or seriously irresponsible conduct”
on their part.
As I said, that provision was not in the 2004 draft Bill. In that Bill, which was submitted for pre-legislative scrutiny, there was no special provision in relation to learning disability. We started from a principle—in many senses it is still valid—that exclusions of any kind were likely to create an arbitrary obstacle to the proper and effective use of the legislation to protect people from the effects of the mental disorder. However, we also know that many people with learning disabilities, and those who work and care for them, were concerned that that would put people with learning disabilities at a greater risk of being detained inappropriately. We do not believe that that is the case, but it is true that historically this has been a very emotive issue, going back to the 1983 Act. There was great concern that people with learning disabilities could be inappropriately detained, sometimes because of the effect of their behaviour, which might be seen as not the norm.
We listened to what the pre-legislative scrutiny Committee said with regard to learning disabilities. When we decided to amend, rather than replace, the Mental Health Act, we took the opportunity to say that we would preserve the way in which the Act currently works with regard to learning disability. That is why we have preserved that provision in clause 2.
That means that before professionals even begin to think about whether a person whose only mental disorder is a learning disability meets the criteria for detention under section 3 and similar sections, they must first be sure that the disability is associated with
“abnormally aggressive or seriously irresponsible conduct.”
The reference to aggressive or irresponsible conduct does not suggest that either is a normal feature of learning disability—quite the reverse, as I am sure all hon. Members would agree. It is to distinguish the small minority from the rest. The vast majority of people with learning disabilities do not display
“abnormally aggressive or seriously irresponsible conduct”
any more than vast majority of the rest of the population.

Angela Browning: Does the Minister agree that, unless it is event-triggered, nor do people with autistic spectrum disorders?

Rosie Winterton: That can certainly be the case, and I shall come to some examples, including that one. I hope that I have helped to illustrate my point. Obviously,
“abnormally aggressive or seriously irresponsible behaviour”
is not a clinical concept, but it is something that we understand.
It is also true—again, this goes back to the history of the previous Mental Health Act—that some people believe strongly that learning disability should not be labelled a mental disorder, both on principle and for fear of exacerbating confusion between learning disability and mental illness. Again, that is often raised.
We are clear that the Bill is not about labelling people but about treating people when necessary. I hope that the hon. Lady accepts that if people with learning difficulties were excluded entirely from the definition, that would risk the very small minorityof those people who need compulsion not getting treatment when they need it; or it would meanthat clinicians would end up sometimes applying inappropriate diagnostic labels to ensure that people who need treatment receive it. Again, if we did that, when a learning disabled person committed a serious offence, the courts might have no alternative but to pass a prison sentence. That is why learning disability remains a mental disorder for the purpose of the Bill generally.
There were many detailed and sometimes emotive and sensitive discussions about learning disability. There was no exclusion in the 2004 draft Bill, but we listened to representations, and a key issue that will apply to many of our discussions in Committee is that we have tried in many instances to retain what is in the 1983 Act. In the case of learning disability, that means that we are maintaining the status quo. We listened to many of the people who said that they would be uneasy about removing it in case it sent the wrong message.We do not believe that it would have done, but wehave listened and we understand the point. We are maintaining the status quo with regard to learning disabilities.
The hon. Lady’s amendment would add to that the condition of autistic spectrum disorder. We are not in favour of it for the reasons that I shall set out. I assure her that I have looked carefully at the amendment because of the many points she has made not onlyin Committee, but elsewhere, about some of the difficulties in diagnosis and the need to ensure that we improve the care available to people with autistic spectrum disorder. She is absolutely right to say that there have been improvements, but that there is still some way to go. One of the key issues that she put her finger on was diagnosis.
We have maintained the general stance that the fewer exclusions in the Bill, the better, because the risk of exclusions is always that someone who perhaps needs treatment will not get it. We want to hold to that general principle because each time an exclusion is added, someone will be at risk of not receiving treatment. The hon. Lady rightly said that others could well make the same case. I am thinking particularly of people with hyper-activity or obsessive compulsive disorders. The same could be said about people with such conditions, so it is difficult for us to pick out a particular group of people and say that we will add their condition to the Bill because others would be well justified to say, “Why not this as well?” I have even heard it said that some people with depression might ask whether their condition should be excluded.
That is the first reason why we do not want to accept the amendment. The hon. Lady was right to refer to some of the discussions that took place when the 1983 Act was drafted. People generally did not understand the full extent of autistic spectrum disorder, particularly Asperger’s syndrome, and some of the other higher functioning forms of autism. I am sure that we all agree that there is now a far wider and better understanding of autistic spectrum disorder than there was in 1983. The hon. Lady is probably aware of a paper byDr. Lorna Wing. It was published in 1981, so by 1983 it had not really received the widespread respect that it enjoys today. It is also true that all forms of autism are now widely recognised as disorders of the mind.

Angela Browning: I wonder whether the Minister would rephrase that description as being a disorder of the brain rather than the mind? There is a difference.

Rosie Winterton: I am more than happy to write to the hon. Lady about it, but I am strongly advised that the condition is a disorder of the mind.
The hon. Lady rightly referred to the fact that it is only possible to detain people when strict conditions are met. The application for assessment is used when an individual is suffering from a mental disorder of a nature or degree that warrants his detention in hospital for assessment, or for assessment followed by medical treatment for at least a limited period. Under the Government’s proposals there is an additional stipulation that the patient must be one who ought to be detained in the interests of his own health or safety or with a view to the protection of others.
That is the position on assessment. Under section 3, which is concerned with detention, an application for treatment may be made on the basis that a patient is suffering from mental disorder of a nature or degree that makes it appropriate for him to receive medical treatment in a hospital, or that it is necessary for the health and safety of the patient or for the protection of others that he should receive such treatment. There is a further condition that detention under the section is required for the provision of such treatment and that appropriate medical treatment is available.
The changes that the Government are proposing under section 3 in relation to appropriate medical treatment, and the link between that treatment and individual circumstances, will enhance the care that is available, and in that way will help with some of the points that the hon. Lady made about inappropriate treatment. I hope that that gives some reassurance with regard to the very valid points that she made about ensuring that people are diagnosed early and that they receive appropriate treatment.

Angela Browning: Obviously, I accept that thereare people with an ASD for whom detention may sometimes be the appropriate route. Detention is traumatic for anybody, however, particularly for those with an ASD, because it involves a change in routine, environment and so on. I hope that the Minister will consider what the royal college has said about alternatives to detention for such people, because detention often compounds the problem.

Rosie Winterton: I shall give way to the hon. Member for Southport before responding.

John Pugh: I understood the hon. Member for Tiverton and Honiton to be suggesting that there was a danger that autism could be undifferentiated from various forms of mental illness. She sought to highlight autism and put, it in a sense, alongside learning disability. Is the Minister now proposing that autism is both a learning disability and a mental disorder, because that seems to be the case? If so, how does the clause deal with it?

Rosie Winterton: Autism is recognised as a mental disorder, as is learning disability. However, even at the time of the 1983 Act it was felt important that, although learning disability is a disorder, the message should not be given that everyone with a learning disability might be detained. There was strong discussion at the time between Lord Rix and David Ennals.

Ian Gibson: One of the previous MPs for Norwich, North.

Rosie Winterton: Indeed. The wording that was arrived at to reflect those discussions was, I believe, dictated down the phone by Lord Rix to David Ennals. Those were the good old days. We have decided, for the reasons that have been raised again, that in a sense it is important to keep what was in the Act at thetime, because that is reassuring for people in those circumstances.

John Pugh: For absolute clarity, what is being said is that although there are some learning disabilities that may or may not be mental disorders, autism is a learning disability that, in whatever form it takes or however severe it is—[Interruption.] It is a mental disorder.

Rosie Winterton: As I understand it—I am sure that the hon. Member for Tiverton and Honiton will help me out—learning disability is a mental disorder. Autism is a mental disorder, but autism arrives because of behavioural development.

Angela Browning: It is a developmental disorder with a triad of impairment; all three boxes have to be ticked for there to be an autistic diagnosis. The Minister might be interested to know that the National Autistic Society was formed because a group of parentswho previously were members of Mencap—a very worthwhile charity, which I have a lot of dealings with—felt that although they had been previously been grouped with Mencap on the basis of a learning disability, their group of children were rather distinct, because of that triad of impairment. Therefore, the NAS was born, but there is quite a read-across still.

Rosie Winterton: I certainly understand that. It is important to examine the rationale behind the clause in the first place in order to be able to address the issues raised by the hon. Lady. It is important to understand that this is a very particular exclusion. People might say that under the application of the Act, if properly used, there would not be this exclusion, but we have reacted to the strong feelings that exist on the issue. The reason why we are concerned about adding further to the list of disqualifications is that unfortunate circumstances would arise if we included people with autistic spectrum disorders within the learning disability qualification. There would be unfortunate consequences where, for example, a person with Asperger’s syndrome committed a serious offence.
This morning, I received information on some cases from Dr. Nick Land, who is a consultant psychiatrist, with expertise in learning disability and Asperger’s syndrome. If it would be helpful and if it met with your approval, Mr. Cook, I would be more than happy to circulate that to members of the Committee, having first obtained Dr. Land’s permission, and to try to submit it as written evidence. In considering closely the points that the hon. Lady has made, I wanted to consult experts in the field and ask, “What are the possibilities? What might happen if we went along the line of the hon. Lady’s amendment?”

Angela Browning: Will the Minister clarify something for me? If she does not put autistic spectrum disorder alongside learning disability in clause 2, how will people with a dual diagnosis be dealt with? It is, of course, quite possible that someone has an autistic spectrum disorder and a learning disability diagnosis. Which will take precedence under the Bill? The learning disability? Will the person have protection, as someone recognised as having a learning disability, in terms of
“abnormally aggressive or seriously irresponsible”
behaviour, or will that be waived?

Rosie Winterton: In those circumstances, I would expect a clinician to be able to consider the learning disability and whether the person was, because of the learning disability, displaying abnormally aggressive behaviour, as we have set out in the Bill, or whether the autistic spectrum was the reason for the disorder. That, again, connects to all the other aspects of the detention, which would be taken into account. Obviously, if someone needed treatment and fulfilled all the conditions—if that person had a learning disorder and was, in a sense, a risk to themselves or others and if appropriate treatment was available under section 3—that is what one would want them to have. It is important that the clinician should be able to make use of the Act to get care to people who need it.

Angela Browning: Would there ever be circumstances in which, if the person with a dual diagnosis was not demonstrating abnormally aggressive or seriously irresponsible conduct, the learning disability diagnosis could let them off the hook, so to speak?

Rosie Winterton: I hope that there will be no letting off hooks if treatment is required.
Perhaps I may discuss a case that I wanted to bring to the attention of the hon. Lady. It is important to recognise that there would be real problems in accepting her amendment in such a case. Mr. H. is a 25-year-old man with Asperger’s syndrome, who lives in a small hostel and attends a sheltered workshop. He has a supportive family and a good relationship with mental health services. A community psychiatric nurse visits him regularly. He is quite withdrawn socially and becomes very anxious around people he does not know. He is fascinated by fire and on three previous occasions has started small fires in public places. This time hehas started a fire in his hostel and although no one has been hurt there has been serious damage to the building and he has been convicted of arson.
His psychiatrist advises the court that Mr. H would be highly vulnerable in prison. In his opinion, Mr. H is not suffering from any other mental illness or personality disorder and his IQ is at the low end of the normal range. He believes that he should be admitted to a mental health unit under the Mental Health Act 1983 where he could be helped to understand the effects of his fire setting. The court questions whethera mental health disposal is legal if his diagnosis is Asperger’s syndrome. What does the psychiatrist do in those circumstances? The point is that if autistic spectrum disorders—autism and Asperger’s syndrome— were excluded from the definition of mental disorder, Mr. H would have to go to prison.

Angela Browning: But surely his conduct is seriously irresponsible. It has to be. If he is a fire setter, that is seriously irresponsible conduct. Society would be protected and he would be appropriately treated.

Rosie Winterton: No, because at the moment his only diagnosis is Asperger’s syndrome, which has been excluded from the Act. He has started small fires, but he is not at present covered under the Act as the hon. Lady suggests.

Tim Loughton: He would be.

Rosie Winterton: He would not in those circumstances be able to have a Mental Health Act disposal. The point is that, in such circumstances, if one makes the exclusion one also creates uncertainty for the clinician. In those circumstances, the clinician has to ask whether there was a disposal that we could make from the court. The court is confused because it sees that if it comes under Asperger’s syndrome, the problem would have been excluded from the Act. Therefore, the court is left with saying that if we want to treat the person in a mental health unit, we would have difficulties doing so. The difficulty in those circumstances is that the person then has not to be treated but to go to prison—because they have committed an offence—instead of being transferred.
Such problems have also been raised about learning disability, because many people said that had to be absolutely clear, which is why there were a lot of discussions in the first place, as the hon. Lady knows. If learning disability continued to be excluded, then there would be a problem if someone committed a crime as to whether they could effectively be treated underthe Mental Health Act 1983—whether they would continue to be treated or be kept in a prison setting. That is one of the reasons why we do not want the overlap between the prison setting and the mental health setting.

Angela Browning: The Minister is talking about the inadequacies of the 1983 Act. If she were to accept my amendment, there would be absolute clarity about ASD, and the Bill would be very clear about how the person in the case she has just described—which Iam quite sure, incontestably, would be seriously irresponsible conduct—should be treated. That would be the reverse of what she has been saying all morning. She could clarify the Act, which would be helpful to the individual, to society and, particularly, to clinicians. That is missing from the 1983 Act. We are now informed about ASD, and she has the opportunity to pick up on that and put it in the Bill.

Rosie Winterton: The issue at stake here is whether the court can truly say that the person has abnormally aggressive or seriously aggressive conduct.

James Duddridge: If that action of fire-setting was not seriously irresponsible conduct, what would be an example of seriously irresponsible conduct?

Rosie Winterton: That is exactly the point at stake. We could get into a grey area. We would be trying to ask the courts to define what is abnormally aggressive. There may be instances, as in this case, where somebody says that they have a fascination with fire—that is their issue—and so there is no guarantee with that individual. The point is that the court then has to look at the case, which might stand in the way of somebody receiving treatment.

Sandra Gidley: I am finding the Minister’s logic convoluted. She is now arguing against the exemption for learning disabilities. Surely the same argument would apply in that case? What isthe problem in extending the definition to autistic spectrum disorder as well?

Rosie Winterton: As I said, we considered removing the exemption.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o’clock.